DEFRA forced to U-turn on Schrodinger’s pheasant after legal threat from Wild Justice

Last month conservation campaign group Wild Justice started legal proceedings against DEFRA over changes that DEFRA had apparently slipped in to General Licence #42 in January, extending the definition of ‘livestock’ which meant permitting the killing of so-called ‘pest’ species to protect pheasants when they were classified as ‘livestock’ (see here and here).

Wild Justice nicknamed this Schrodinger’s pheasant, with a nod to Schrodinger’s cat, because the pheasant’s status seemed to be ‘livestock’ and ‘wildlife’ simultaneously, according to whatever seemed to suit the shooting industry at any given time:

Earlier this week, DEFRA wrote back to Wild Justice to acknowledge that the extension of the definition of ‘livestock’ in this case would not be not lawful and that the terms of General Licence #42 have now been amended to clarify the status of pheasants.

Tom Short, one of Wild Justice’s lawyers at Leigh Day, simplifies the arguments very well with this explanation:

When GL42 was published in January, it appeared that Defra had deliberately sought to extend the definition of “livestock” as set out in 27(1) Wildlife and Countryside Act 1981 by way of footnote 7. This meant that certain Pheasants released from their pens by shooting estates would now be counted as “livestock” rather than wild birds. That matters because as “livestock”, GL42 authorisers user to kill or take Carrion Crows, Jackdaws, Magpies or Rooks to protect the Pheasants.

In particular, Wild Justice was concerned that GL42 went beyond the definition of “livestock” in the WCA 1981, to now include gamebirds “kept in an enclosure or which are free roaming but remain significantly dependent on the provision of food, water or shelter by a keeper for their survival”. The WCA 1981 definition by contrast only includes gamebirds which remain “kept” “for the provision or improvement of shooting”. On that definition, once a Pheasant is let out of the release pens ready for the shooting season, it is no longer kept for the provision of shooting and so its protection cannot be a lawful reason to kill or take Carrion Crows, Jackdaws, Magpies or Rooks under GL42.

Wild Justice asked Defra to justify the extension of the definition. In their response, Defra has agreed to revise the definition, has conceded that it is the WCA 1981 definition that applies and that they cannot extend that definition by including additional wording in the general licences. DEFRA also says that “The Secretary of State does not consider pheasants to be livestock within the meaning of the WCA 81 once they cease to be kept”.

Defra’s agreement to amend footnote 7 also clarifies that gamekeepers cannot claim that Pheasants they have released are “kept” simply by virtue of providing supplementary food “out into the environment”. Supplementary food does not make a wild Pheasant a kept Pheasant.  Defra says that “In principle, there is a significant and clear difference between the feeding of dependent kept birds and the provision of supplementary food in the environment”. We might doubt quite how clear that difference is, but certainly it is a reasonable argument (to be judged on the facts of each case) that a “dependent kept bird” would be one that is largely dependent on food in or by the pen.

Related to this, Defra has also confirmed that only shelter that is provided by a gamekeeper “by or within the release pen” is a factor in assessing whether a Pheasant is kept or wild. Any shelter that is provided further away does not bring a Pheasant back into a gamekeeper’s keeping.

Defra has also confirmed that lethal control is a method of last resort and alternatives must always be tried first.

Wild Justice challenged the expansion of the definition of “livestock” footnote 7 and the Secretary of State has conceded that the definition cannot be extended past what is set out in primary legislation. Any gamekeepers hoping to kill Carrion Crows, Jackdaws, Magpies or Rooks to protect Pheasants are only permitted to do so where those Pheasants are still “kept” and not yet wild birds, and only where they have explored non-lethal alternatives. No amount of spreading “supplementary food” or extra bits of shelter away from the release pen can make a wild Pheasant a kept Pheasant.

There’s a piece in today’s Guardian about this latest win for Wild Justice (here) and a Wild Justice blog (here).

Wild Justice has three co-directors (Mark Avery, Chris Packham, Ruth Tingay) who work unpaid as volunteers. Their work to get a better deal for wildlife relies entirely on donations so if you’d like to support their work please consider a donation here. If you’d like to hear more about their legal challenges and campaign work, please sign up for their free newsletter here.

Thank you.

12 thoughts on “DEFRA forced to U-turn on Schrodinger’s pheasant after legal threat from Wild Justice”

  1. Well done WJ – a great legal result, but… Does anyone think that this will mean less wild birds casually killed as a result of this welcome news? Who is going to go around and assess shooting estates when pheasants are ‘livestock’ or ‘wildlife’ and count the number and time of crows etc. killed by keepers? Despite the no-doubt-soon-to-arrive faux-outrage from the shooting ‘industry’ I suspect that they will simply carry on pretty much as normal until we have proper, rigorous enforcement – was that a ‘wild’ pig or a ‘livestock’ pig I just saw fly by?!

    1. It’s a good point, Stephen, and as Wild Justice say on their blog, the GL system is really not an effective system to regulate so-called ‘pest control’, and WJ may do some more work on that.

      However, I think the ‘footnote7’ issue on GL42 is more significant than we might think. ‘Someone’ obviously thought the issue was important enough to pressure DEFRA into extending the definition of ‘livestock’ in footnote 7. They wouldn’t have bothered if it didn’t matter to them!

    2. Much depends on whether individuals are willing to confront the shooters. A shooter killing “branchers” — young rooks just fledged but sitting passively on the lower branches of trees — as a bye the way at that time of the year. When confronted he simply turned his back and continued to shoot them.
      When asked why he was shooting them he replied,
      “because they were crows.”
      He was informed that they were not crows but were, in fact, rooks and that if he could not tell the difference he should not be shooting.
      On moving away another shooter was encountered and was asked, why are they shooting the rooks, to which he answered
      “because there are too many of them.”
      A short time afterwards both had moved and have not been seen doing the same thing since.
      The local policeman was informed but no complaint was made.
      This was in Scotland and at the time rooks had already been removed from the General List and required another licence with accompanying reasons, which would have informed our next move if the same behaviour had been repeated.

    3. I prefer to think that despite the use of this challenge by WJ will not change the attitude or actions of the shooters, many of whom will continue to shoot anything they choose, even though not even being sure of the identification of the animal. DEFRA will continue to follow the instructions of the government, as will the government in following the wishes, both of the shooters and the Russian benefactors of the Tory Party in other matters.
      The successful action by WJ is very useful in demonstrating the illegal actions of the government. Unfortunately it is not sufficient to stop the illegal shooting, but is the best we can hope, in that it draws attention of the issue.

  2. Legally shooting Rooks! Really? A placid bird that I have never experienced threatening any game bird’s existence unless we count competing for food. And if we did, there’d be many other on the list.

    1. Has anyone ever calculated the value of ecosystem service that rooks provide? Just think about the tonnage of leather jacket control that they provide to silage farmers…

    2. The only complaint I’ve heard from a gamekeeper regarding Rooks is that they dug up the seeds of his game-crops. I very much doubt that this would bring them within the remit of GL42. So why are they in there?

  3. This is good result, the principle of the thing is very important – even though we all know that in the real world it won’t save many Rooks, etc just now. But one day sooner or later there will be a government in charge that is not controlled by vested interests and it will enforce the law, and then things will get very interesting!

  4. As far as punching way, way above its weight goes I think WJ may be a contender for world champion. Making legal challenges is also an excellent way of raising public awareness about issues mainstream media may think are of too marginal an interest to be covered. Its conception, creation and running have been one hell of an achievement, and I hope that you Ruth, Chris and Mark take an awful lot of pride and satisfaction from that.

  5. Presumably, in the event of a bird flu outbreak, pheasants classed as livestock would have to be destroyed? How would that work? Could sporting interests be held liable? You could ask your lawyers to test that. What a mad world we humans create for ourselves.

  6. A great start to who owns what. On a side note I often get mail discussing the release of other animals near these estates . Wild cats , Beavers etc how can charities release into this environment.

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